Wakf in Muslim Law: Concept, essentials, Creation, Registration

Wakf in Muslim Law: Concept, essentials, Creation, Registration

Introduction

The origin of wakfs is followed to an expression of the Prophet. In any case, the standards identifying with wakfs were grown later on by ijma (agreement). The accompanying custom is viewed as the premise on which the law of wakfs has been created. One Omer Ibnal-Khattab on getting lands in Khyber went to the Prophet and beseeching him said, “O Messenger of Allah! I have got land in Khyber than which I have gotten more significant property; what does thou advice me?” The Prophet whereupon talked along these lines, “If thou likest make the actual property basic and give the benefits from it to the cause.” Omer acting likewise, set out that the property would not be sold, or parted with in blessing, or acquired. He coordinated that out of the pay of the property, good cause ought to be given to the penniless and the family members, slaves ought to be liberated, arrangement ought to be made for the voyagers, and visitors ought to be engaged.

The accompanying expression of the Prophet is regularly cited, and is viewed as the briefest meaning of a wakf: “Tie up the substance and part with the natural product”. In beginning of Islam, the law of wakfs experienced incredible vulnerability. It was distinctly in the second century after the Flight that a group of rules dependent on ijma were created.

In the hundreds of years that followed not only the land but rather a wide range of property, versatile and unflinching, were made the topic of wakfs. Throughout time, the Muslim world tracked down that the “dead hand” (as wakfs were allegorically called) was attempting to strangulate all advancement and prosperity. Vast stretches of land, and any remaining kinds of properties, were devoted to wakfs everywhere on the Muslim world.

In India, there are around one lakh wakfs esteemed at in excess of 100 crores of rupees. Occasions of the bungle of wakfs are various; the inadequacy and debasement of the mutawallis is shocking and horrifying; as a rule, the properties of the wakfs are wasted away.

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Meaning of Wakf

In its crude sense, in a real sense, “wakf” signifies “Detention”. Up to the time of Abu Hanifa, it was not satisfactory as in who did the responsibility for wakf property vest. Abu Hanifa characterized wakf as “the tying up of the substance of a property in the ownership of the wakf and the devotion of its usufruct, amounting to an aryia, or commodate loan, for some charitable purpose.” This implies that as indicated by Abu Hanifa, the possession in the wakf property kept on being vested in the proprietor and its usufruct was spent for magnanimous or devout reason. As per Abu Yusuf and Imam Mohammed, wakf is the tying up the substance of a thing under the standard of the property of Almighty God, with the goal that exclusive right of the wakf gets quenched and is moved to Almighty God for any reason by which its benefits might be applied to the advantage of His creatures.”

Essential elements

The definition of the wakf has three essential elements:

  • the ownership of the founder or the wakif is extinguished,
  • the property vests in the ownership of God perpetually and irrevocably, and
  • The usufruct of the property is used for the benefit of mankind.

Characteristic Features of a Wakf

The Muslim foundation of wakf has a few trademark includes some of which are one of a kind. The remarkable highlights of a wakf are that the property vests in the responsibility for, it is perpetual devotion, and a wakf is unalterable. Indeed, these are two features of exactly the same thing.

  • Property vests in God.– The exceptional component of wakf is that the Responsibility for committed for the wakf vests in God. The making of a wakf is basically founded on a lawful fiction, the fiction, being that the property vests in God in interminability, however pay from the property is allowed to be used for certain predetermined purposes, which under the Muslim law are perceived as devout or strict. In regard of vesting of wakf property in God, there is no differentiation between a Shia wakf and a Sunni wakf or a public wakf or a private wakf.
  • Wakf should be perpetual.- A Muslim wakf should be made for an limitless period. Wakfs for restricted periods are obscure to and are not perceived by Muslim law. So, interminability is a fundamental and extraordinary component of wakf. Indeed, even the instance of a family (wakf for alal aulad), a definitive advantage should be explicitly or impliedly held for poor people or for some other reason perceived by Mussalman law as strict, devout or magnanimous motivation behind a lasting person. Consequently, an endowment of a usufructuary home loan by the mortgagee or of a house remaining ashore rented for a fixed term is void, being of brief nature. Essentially, a wakf won’t be perpetual if the wakf-nama contains a condition that assuming the properties are botched, the property ought to be split between the relatives of the wakif.
  • Wakf should be irreversible:.- The unavoidability is another trademark highlight of a wakf. Once comprised truly, a wakf can’t be disavowed. In the event that in a wakf-nama a condition is specified that the wakif stores to himself the right of repudiating of wakf, or that the wakf will stand renounced on the incident of any occasion, then, at that point such a wakf is void. Additionally, the ability to alter the wakf might be held, yet not supreme force of changing the objects of the wakf. The accompanying condition in a wakf deed was held legitimate: “If during my life, I so want, I will be capable to revoke or adjust by a new wakf-nama the arrangements concerning the arrangement of the mutawalli and different standards and methodology.”
  • Repudiation of testamentary wakf: – The situation of testamentary wakf is extraordinary. A testamentary wakf might be denied by the pilgrim whenever before his passing. It’s anything but a testamentary wakf is just an inheritance and, accordingly, it tends to be disavowed like some other endowment. A testamentary wakf appears after the passing of the wakif. For a similar explanation, a testamentary wakf isn’t invalid on the ground that the deed contains a proviso under which it is specified that wakf won’t appear if the wakif is honored with a kid.
  • Wakf properties are inalienable:.- It’s anything but a characteristic end product of the regulation of permanency of wakfs that once the properties are committed to God, they can’t be distanced. Nonetheless, this standard isn’t supreme, and in specific conditions, it is reasonable that a mutawalli may distance the wakf properties. When a wakf-nama permits a mutawalli to sell wakf properties in specific conditions, then, at that point the mutawalli has the ability to sell wakf properties in those conditions. It’s just plain obvious, “Mutawalli force of estrangement.”

Wakfs are of two sorts:

(a) Public Wakf, and

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(b) Family wakfs.

Registration

If a wakf of immovable property worth rupees one hundred or more is created by a deed, the deed requires registration under S. 7 17(i)(b) of the Registration Act. In Md. Rustom Ali v. Mustaq Hussain, a Muslim executed a deed and got it registered by which he created a wakf and constituted himself as the first mutawalli. He also reserved to himself the power of appointment of additional mutawallis. In the deed, he clearly laid down the powers and duties of mutawallis. Later on, he executed another deed by which he appointed additional mutawallis, some were required to act jointly with him and some were required to act after his death. This deed was not registered. Subsequently, he died. The mutawallis brought a suit for the recovery of property from the possession of the heirs. The heirs, inter alia, took the defence that since the second deed was not registered, the mutawallis had no locus standi to file the suit. Repelling the contention, the Privy Council said that since the second deed did not purport to assign the property to the mutawallis, it did not require registration.

Author: Dhawani Sharma,
Amity University , Madhya Pradesh

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